Wash. Court of Appeals published opinion — D2 51946-1-II Published Opinion.pdf

Citation: Wash. Court of Appeals published opinion — D2 51946-1-II Published Opinion.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/D2%2051946-1-II%20Published%20Opinion.pdf ↗

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the defendant’s need for the information sought to be admitted.” State v. Arndt, 194 Wn.2d 784,

812, 453 P.3d 696 (2019).

We review a trial court’s evidentiary rulings for abuse of discretion. Id. at 797. We

review de novo whether an evidentiary ruling violated the defendant’s right to present a defense.

Id. at 797-98.

2. Admissibility of Testimony Explaining Prior Inconsistent Statements

Witnesses may be impeached with a prior out-of-court statement of a material fact that is

inconsistent with their trial testimony. ER 613. This evidence is not probative of the substantive

facts but is impeachment evidence affecting the witness’s credibility. State v. Clinkenbeard, 130

Wn. App. 552, 569, 123 P.3d 872 (2005). If a witness has been impeached by a prior statement,

evidence generally is admissible to explain that statement. See ER 801(d)(1); see also 5A KARL

B. TEGLAND, WASHINGTON PRACTICE EVIDENCE LAW AND PRACTICE § 613.18 (6th ed. 2016).

However, if a witness denies making a prior inconsistent statement and no extrinsic

evidence of that statement is introduced, a trial court may disallow testimony explaining the prior

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No. 51946-1-II

statement. State v. Thacker, 94 Wn.2d 276, 280, 616 P.2d 655 (1980). “The rationale is that no

impeachment evidence has been introduced into evidence which calls for an explanation.” Id.

The trial court has discretion whether to admit explanatory testimony. Id. at 280-81.

The court in Thacker rejected the notion that a defendant is never entitled to introduce

evidence that would explain prior statements not introduced into evidence. Id. at 281. In that

case, on cross-examination of the defendant the prosecutor read extensive excerpts from the